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DEPARTMENT OF THE TREASURY INTERNAL REVENUE SERVICE FRESNO SERVICE CENTER FRESNO, CALIFORNIA and CHAPTER 97, NATIONAL TREASURY EMPLOYEES UNION

United States of America

BEFORE THE FEDERAL SERVICE IMPASSES PANEL

In the Matter of

DEPARTMENT OF THE TREASURY

INTERNAL REVENUE SERVICE

FRESNO SERVICE CENTER

FRESNO, CALIFORNIA

and

CHAPTER 97, NATIONAL TREASURY

EMPLOYEES UNION

Case No. 97 FSIP 102

DECISION AND ORDER

Chapter 97, National Treasury Employees Union (Union) filed a request for
assistance with the Federal Service Impasses Panel (Panel) to consider a
negotiation impasse under the Federal Service Labor-Management Relations Statute
(Statute), 5 U.S.C. § 7119, between it and the Department of the Treasury,
Internal Revenue Service, Fresno Service Center, Fresno, California (Employer or
FSC).

After investigation of the request for assistance, the Panel determined that
the dispute, which concerned two alternative work schedules (AWS) issues arising
during renegotiations of a local AWS agreement, should be resolved through an
informal conference between a Panel representative and the parties. If no
settlement were reached, the Panel representative was to notify the Panel of the
status of the dispute; the notification would include the final offers of the
parties and the representative's recommendation for resolving the matter.
Following consideration of this information, the Panel would take whatever
action it deemed appropriate to resolve the impasse, including the issuance of a
binding decision.

Pursuant to the Panel's determination, Panel Member Dolly M. Gee met with the
parties on September 22, 1997, at the Employer’s office in Fresno, California,
but they were unable to resolve the one remaining issue.(1) Subsequent to the
meeting, at Ms. Gee’s request, the parties submitted written statements in
support of their final proposals. Ms. Gee has reported to the Panel, and it has
now considered the entire record.

BACKGROUND

The Employer is responsible for processing Federal tax returns and related
documents received from taxpayers in Central and Southern California. The Union
represents approximately 5,600 full-time and 2,000 seasonal General Schedule
(GS) employees who are part of a nationwide, consolidated bargaining unit of
approximately 98,000. They occupy various administrative and clerical positions
in pay grades GS-2 through -11. The parties are covered by a master
collective-bargaining agreement (MCBA) known as NC IV, which is due to expire on
June 30, 1998.

ISSUE AT IMPASSE

The parties essentially disagree over the procedure that should be used to
restrict employees’ choice of scheduled off days under a 5/4-9 CWS.

POSITIONS OF THE PARTIES

1. The Employer's Position

The Employer proposes to add the following paragraph to wording previously
agreed to by the parties (section 3.E.):

When the days off for a 5/4-9 work schedule are listed as "any day
25 [percent]," the number of employees who may be off on any given day
is limited to no more than 25 [percent]. An employee may bid for any day off
in the pay period. However, if there is an odd number of people and an
unacceptable balance occurs, management has the right to restrict the days
off to the percentages listed.(2) Example: If there are [five] perm[anent
employees] bidding for 5/4-9 and each bids a Monday or Friday off,
management may, based on workload demands, deny the person with the least
seniority a Monday or Friday. That person may receive a Tuesday, Wednesday,
or Thursday off.

This proposal balances employees’ interest in having flexibility in their
work schedules and the Employer’s in operational efficiency. In this regard,
it is "[i]ndisputabl[e]" that, with the addition of a 4-10 CWS option
and the increase in the number of work units whose employees can work a CWS,
fewer employees would work Mondays and Fridays, the "busiest and heaviest
workload days for a majority of the 400 work units." Given "the
nature" of the FSC’s work, at least 75 percent of its workforce needs to
be present on any given day. If more than 25 percent of employees working a
5/4-9 CWS in a unit are consistently allowed to take the same day off, it will
"ultimately impact [] the service provided the taxpaying public." To
ensure that 75 percent of the workforce is at work each day, it proposes
strictly to limit to 25 percent the number of employees on a 5/4-9 CWS who can
be off on any Monday or Friday. This restriction is consistent with those in
place at other Service Centers such as the Brookhaven Service Center in New
York, the Austin Service Center in Texas, the Ogden Service Center in Utah, and
the Kansas City Service Center in Kansas. It also is consistent with earlier
Panel decisions.(3) It is "inexplicable" why the Union would agree to
such a restriction for employees working a 4-10 CWS, but not for those under a
5/4-9 CWS.

As for the Union’s proposal, it violates § 6122(a) of the Federal
Employees Flexible and Compressed Work Schedules Act (Act), which
"mandates" that an election by an employee is "subject to the
Agency’s authority to ensure that the duties of their positions are
fulfilled."(4) The proposal also violates Article 43, § 1B(2)(p) of the MCBA,
and § 6130(a) of the Act, by providing for the resolution of disputes over the
selection of days off through negotiations. This MCBA provision expressly
provides for arbitration as the forum for resolving AWS disputes, while §
6130(a) of the Act subjects the AWS agreement to the terms of the MCBA.
Moreover, the proposal is inconsistent with the parties’ past practice of
resolving AWS disputes through the contractual grievance and arbitration
procedures. To the extent that the proposal allows for employees to stay on
their selected schedules pending the resolution of disputes, it is contrary to
the MCBA which would allow FSC to assign the employee to another off day.
Further, under § 6131 of the Act, only disputes over the implementation and
termination of AWS are subject to negotiations, and not those over "AWS
contract applications" such as the Employer’s "enforcement of the 25
percent limitation."

On the merits, the Union’s proposal is "shortsighted and
unreasonable." In this regard, it allows employees on a 5/4-9 CWS to select
their off days "without limitation," which "disregards the Agency’s
mission requirements." Also, it interferes with management’s efforts to
ensure that "productivity is not harmed." The Union does not give
reasons for its proposal other than "political" ones. Finally, the
proposal is unacceptable because it allows employees to stay on their selected
schedules while disputes are being resolved, which "would destroy
efficiency."

2. The Union's Position

The Union proposes the following addition to section 3.E.:

Should an odd number of employees in a unit select a 5/4-9 schedule with
Monday or Friday as their off day, the least senior employees will be
assigned to either a Monday or Friday off in accordance with past practice,
notwithstanding the 25 [percent] distribution rate on Mon[day]/Fri[day] off.

Should the assignment of an odd number [of] employees to a Monday/Friday
day off combined with the selection of a Monday or Friday day off for those
employees selecting a 4/10 work schedule result in fewer employees than
needed to perform the necessary work in a unit on either day (Mon[day] or
Fri[day]), management will notify the Union, and the Union may request to
bargain in good faith over the resolution of the matter. It is understood by
the parties that a failure to resolve this matter through bargaining in good
faith between the parties may be referred to the FMCS and to the Federal
Service Impasses Panel, if necessary. In units where management identifies
such a situation, existing AWS schedules will continue in effect pending
resolution of the dispute.

Employees opting for a 5/4-9 schedule may select a Tuesday, Wednesday, or
Thursday as their day off, provided that day has not been identified as a
critical cycle day by the parties.

Employees may not be involuntarily assigned to Tuesday, Wednesday or
Thursday off unless specifically agreed elsewhere in this Agreement.

Its proposal preserves the parties’ "long-standing past practice"
of permitting all employees to select a Monday or Friday every other week as
their off day under a 5/4-9 CWS; this was so even when the number of employees
selecting a 5/4-9 CWS was a number "not evenly divisible by four." In
practice, when an odd number of employees opted to work a 5/4-9 CWS, more than
25 percent of them have been allowed to select every other Monday or Friday as
their off day. It is clear, therefore, that the "25 percent language"
was "intended to mean an equal distribution between the four options for
off days." Since it would be "the exception rather than the rule"
that an even number of employees in each work unit would elect to work a 5/4-9
CWS, the interpretation the parties have given such language has been that
"‘no less than 25 percent’ rather than ‘no more than 25 percent’"
may be off on Mondays or Fridays.

Notwithstanding this interpretation, the number of employees who would be off
on any given Monday or Friday would not "vary significantly from the 25
percent goal." In those situations where the Employer believes it is unable
to get the work done because of the number of employees that are off, the Union
proposes that the parties negotiate over changes to the employees’ off days;
the employees, however, would remain on their selected schedules until the
matter is resolved. In this regard, during the many years employees have been
working CWSs, the parties have been able to resolve all problems that have
arisen by: (1) getting employees voluntarily to change their schedules; (2)
assigning supervisors to do the work; and (3) temporarily detailing employees
from a work area where "the work is slow." Overall, its proposal
"is more reasonable and consistent with the policies of the Panel."

The Employer’s proposal, on the other hand, gives management "carte
blanche" to assign 5/4-9 employees to other than a Monday or Friday off,
and is contrary to past practice. Since the reason an employee selects a 5/4-9
CWS is to get a 3-day weekend every other week, the Employer’s proposal
represents a "significant loss of a CWS option." Moreover, the
"new restriction" sought by the Employer is not necessary given that
the parties have already agreed that: (1) the 4-10 CWS option will not be
available in all work units and (2) there will be a limit on the number of
employees who can be off on days identified as "critical." Finally, it
is "speculative" that problems will arise without a strict 25-percent
rule.

CONCLUSIONS

Upon careful review of the evidence and arguments presented by the parties,
we shall order the adoption of a modified version of the Union’s proposal.
Regarding the parties’ 25-percent rule, we note that the Employer does not
dispute the Union’s claim that, in practice, the rule has been applied loosely
when an odd number of employees in a work unit has elected to work a 5/4-9 CWS.
Nor do we believe that it has demonstrated a need for changing their past
practice at this time. In this regard, the Employer does not provide evidence
that the practice has, for example, reduced productivity or had a negative
impact on customer service. Therefore, its concern that such problems will arise
if the rule is not strictly applied once the 4-10 CWS option is added appears to
be speculative. This is also why we support the Union’s proposal that existing
schedules should remain in effect if disputes arise concerning adverse impact.
The Employer cites no applicable provision of the MCBA that would be violated by
adopting such wording, nor is any otherwise apparent.

On another aspect of the dispute resolution process, however, we find it
necessary to modify the Union’s proposal. In our view, disputes over the
scheduling of days off should be resolved through the expedited arbitration
procedure set forth in the MCBA. This is consistent with Article 43, § 1B(2)(p)
of the MCBA, which requires that the parties use expedited arbitration to
resolve AWS disputes. Moreover, we are not persuaded by the Union’s argument
that negotiations resulting in future impasses would provide a more efficient
and effective way of resolving them. Finally, we will also modify the Union’s
proposal to specify that employees opting for a 5/4-9 schedule may voluntarily
select a Tuesday, Wednesday, or Thursday as their off day, provided that day has
not been identified as a critical cycle day by the parties. By making this
adjustment there does not appear to be a need for the last sentence of the Union’s
proposal. Accordingly, it will be deleted from the Order that follows.

ORDER

Pursuant to the authority vested in it by the Federal Service
Labor-Management Relations Statute, 5 U.S.C. § 7119, and because of the failure
of the parties to resolve their dispute during the course of proceedings
instituted pursuant to the Panel's regulations, 5 C.F.R. § 2471.6 (a)(2), the
Federal Service Impasses Panel under § 2471.11(a) of its regulations hereby
orders the following:

The parties shall adopt the Union's proposal modified as follows:

Should an odd number of employees in a unit select a 5/4-9 schedule with
Monday or Friday as their day off, the least senior employees on such a
schedule will be assigned to either a Monday or Friday off in accordance
with past practice.

Should the assignment of an odd number of employees to a Monday/Friday
day off combined with the selection of a Monday or Friday off for those
employees selecting a 4/10 work schedule result in fewer employees than
needed to perform the necessary work in a unit on either day (Monday or
Friday), management will notify the Union and a good faith effort will be
made to informally resolve the scheduling dispute. In units where management
identifies such a situation, existing AWS schedules will continue in effect
pending resolution of the dispute.

If no informal resolution of the dispute can be achieved after the Union
is notified of the situation, the parties may invoke the expedited
arbitration procedures under Article 43, section 4C of NC IV, the parties’
master agreement.

Employees opting for a 5/4-9 schedule may voluntarily select a Tuesday,
Wednesday or Thursday as their day off, provided that day has not been
identified as a critical cycle day by the parties.

By direction of the Panel.

H. Joseph Schimansky

Executive Director

November 18, 1997

Washington, D.C.

1.The parties resolved one of the impasse issues -- number and length of rest breaks allowed employees on a 4-10 compressed work schedule (CWS) -- during a teleconference with Ms. Gee which preceded the informal conference.

2.The Employer defines an “odd number” of employees as more than 25 percent of those selecting the 5/4-9 CWS option.

4.The Employer’s reliance on this statutory provision is misplaced. In this regard, § 6122(a) addresses flexible work schedules (FWS), and not CWS such as 5/4-9 and 4-10. The specific wording referred to concerns an employee’s selection of arrival and departure times under a FWS, and not days off under a CWS. CWSs are authorized under § 6127 of the Act, which does not include the same or similar wording.